APPEAL from the Circuit Court of Marion County; the Hon.
RONALD A. NIEMANN, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant Judy Meeks appeals from a judgment of the circuit court of Marion County entered on a jury verdict finding her guilty of three counts of unlawful delivery of a controlled substance. She elected to be sentenced under the provisions of the new Illinois sentencing act, which has a legislatively expressed preference for probation as a sentencing alternative in appropriate cases (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-6-1). Following a sentencing hearing, the court imposed three concurrent sentences of two years to the Illinois Department of Corrections. Probation was denied. Defendant appeals from the judgment and the sentence, alleging certain errors at both the trial and the sentencing hearing.
The defendant's assignments of error insofar as the trial is concerned relate to a statement by the judge in front of the prospective jurors that a large majority of cases are settled before trial, the State's failure to disprove an affirmative defense which it allegedly put in issue, the State's failure to properly establish a chain of custody for admission of the controlled substances, the State's alleged substantive use of impeaching evidence, and the general insufficiency of the evidence to sustain a verdict of guilty beyond a reasonable doubt.
The defendant's assignments of error insofar as the sentencing hearing is concerned have to do with the court's alleged failure to read and consider the presentence report, the court's consideration of offenses neither charged nor proven against the defendant, the court's inference and consideration of perjury by the defendant as a consequence of the jury's rejection of her testimony, and the denial of probation in view of the defendant's strong potential for rehabilitation in contravention of the statutory policy.
Those errors alleged to have occurred at trial are insufficient to warrant a reversal of the conviction, but a thorough review of the record and the requirements of the new sentencing act, however, indicate that the sentencing hearing did not comport with the statutory policy and therefore requires a remand for a new sentencing hearing.
The facts of the case grow out of three separate deliveries of a substance known as phencyclidine, commonly referred to as "PCP," to an undercover agent of the Illinois Bureau of Investigation. The undercover police officer, George Murray, testified that on three separate occasions in 1977 he and a confidential informant went to the defendant's residence in Centralia, Illinois, and purchased four "dime-bags," or $40 worth, of PCP from the defendant. Murray was the State's key witness and the only eyewitness to the transactions at the trial. The informant was not called as a witness. Several other officers of the Illinois Bureau of Investigation conducted surveillance on Murray while he made the purchases and rendezvoused with him afterwards for purposes of processing the evidence, but were not witnesses to the actual goings-on inside the residence.
The substances were delivered for analysis and were identified at trial as containing PCP by two persons employed by the Illinois Bureau of Scientific Services who described their occupations as "criminalist." Both the "criminalists" and the police officers testified as to the chain of custody of the substances.
Defendant presented an alibi defense, alleging that she was in Chicago seeking employment at all times in question. Four defense witnesses testified as to her whereabouts during this time, concluding that it would not have been possible for defendant to be in Centralia when the crimes were committed. The State's case-in-chief included testimony from a neighbor of the defendant who happened to be a Centralia police officer that he observed the defendant at home on the dates in question. In rebuttal, the State offered an employment application from the Centralia Illinois Power Company allegedly signed by the defendant during the time she claimed to be in Chicago. The trial court restricted use of this exhibit to impeachment evidence and refused to let it go to the jury.
The trial court ordered a presentence investigation as required by the Unified Code of Corrections since the offense involved was a felony. (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-3-1.) At the sentencing hearing, the defendant elected to be sentenced under the amended version of the Unified Code of Corrections which makes probation a preferred sentencing choice. The offense involved is a Class 3 felony. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(d).) The punishment provided under the old sentencing scheme was an indeterminate sentence ranging from one to 10 years and a possible fine of up to $15,000, plus a mandatory parole of three years. (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-1.) The punishment under the amended sentencing law is a determinate sentence of not less than two years nor more than five years and a possible fine of up to $15,000, with a mandatory supervised release term of one year. (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-8-1(a)(6) and (d)(3).) The defendant had the choice of a lower minimum sentence under the old statute should imprisonment be imposed, although the old statute reflected a policy now discarded by the legislature that imprisonment could work as a rehabilitation.
1 We will first consider the alleged trial errors. The trial judge's comments to the panel of jurors that "many cases are settled at the last minute" and "it's your availability as jurors that often times causes those cases to be settled" were not prejudicial to the defendant by inferring that she had engaged in plea negotiations, which in turn infers that she is guilty. This was neither a special nor a general reference to real or supposed plea negotiations on the part of the defendant, but rather a preliminary attempt by the judge to explain our system of jury selection and responsibility and to bring to the panel's attention their usefulness in the administration of justice.
2-4 The defendant next contends that the State put into issue the exemptions of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1506) by asking the undercover police officer who made the purchases whether he had any knowledge that defendant was a doctor, pharmacist, or otherwise licensed to dispense drugs and whether he had given her a prescription. Since the Illinois Controlled Substances Act puts the burden on the defendant of proving any exemptions, it is tantamount to an affirmative defense. (People v. Biers (1976), 41 Ill. App.3d 576, 353 N.E.2d 389.) The State is not required to allege and prove the nonexistence of these exemptions when they are not raised. However, once they appear to be reasonably applicable, the State must disprove them beyond a reasonable doubt. (People v. Biers (1976), 41 Ill. App.3d 576, 582-83.) The undercover agent's statement that he had no knowledge of defendant falling within one of the exemptions would not be proof beyond a reasonable doubt, even if it was unimpeached and uncontradicted as the State has argued. But that is not the issue. The applicability of the exemptions was never put in issue, either on direct examination by the State as outlined above or on cross-examination by the defendant. The State does not put an affirmative defense into issue by attempting to show that a defendant had no legal justification for her actions. Furthermore, the purpose behind affirmative defenses and exemption provisions of relieving the State of the wasteful task of proving certain negative propositions would have been defeated here if the State had been required to bring forth personnel from the Department of Licensing and Registration to testify that defendant was not licensed to dispense drugs in the State of Illinois.
Defendant next contends that there was an insufficient foundation laid for admission of the controlled substances into evidence due to irregularities in the chain of custody. This is based upon an alleged possibility of accidental substitution while at the crime laboratory. Defendant contends that even though the evidence was kept in a locked vault before and after testing, there was no testimony as to what other individuals might have had access to the vault prior to testing. There is no missing link in the chain of possession of these substances. They have been accounted for at all relevant times up to trial. There is no suggestion in the record of any tampering or altering of the substances and defendant did not inquire into these matters on cross-examination. Therefore, the admission of them into evidence was proper.
5, 6 Defendant's contention that the State's evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt is based upon two propositions, both of which are invalid. Defendant first contends that the State's evidence standing alone is unsatisfactory because of the failure to call other occurrence witnesses. Defendant then contends that her overwhelming evidence of alibi renders the State's evidence insufficient by comparison. Both of these, defendant argues, cast sufficient doubt upon her identification as the individual involved in the deliveries so as to warrant reversal. The case relied upon by the defendant in support of a reversal because of conflicts between the strength of identification testimony and alibi evidence is not on point. In People v. Gardner (1966), 35 Ill.2d 564, 221 N.E.2d 232, a rape conviction was reversed because the identification of the defendant was uncertain in view of the nature of the crime and the circumstantial evidence. In the present case, the State's key witness had three separate opportunities to view the defendant, there is no indication that he was under any kind of stress during these observations which could impair his perception, and the defendant failed to impeach him during cross-examination on the circumstances surrounding the identification. The testimony of a single witness, if positive and credible, is sufficient to sustain a conviction, even though contradicted by the accused. (People v. Wilkins (1976), 36 Ill. App.3d 761, 344 N.E.2d 724; People v. Glaze (1977), 48 Ill. App.3d 523, 362 N.E.2d 1287.) Finally, defendant's alibi evidence was substantially impeached and the jury was well within its province to disbelieve it when deciding the question of identification.
Defendant's final allegation of error at the trial concerns the State's use of evidence outside its limited purpose. During cross-examination of the defendant, the State attempted to impeach her credibility by confronting her with an employment application allegedly completed by her in Centralia during the period in which she testified that she was in Chicago. The court permitted this evidence to be used solely for the purpose of impeachment and not as substantive proof of defendant's presence in Centralia, and the jury was so instructed. Defendant contends that the State's comments during closing argument in reference to the application were for the purpose of proving defendant's presence in Centralia, rather than to show inconsistencies in her testimony. In other words, defendant contends that the ...